Citation Nr: 1319990 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 11-01 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to October 7, 2009, due to the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. During the pendency of this appeal, in an April 2013 rating decision, the Appeals Management Center granted service connection for bronchial asthma and assigned a 100 percent evaluation, effective October 7, 2009. As such, the Veteran's combined rating has remained 100 percent since October 7, 2009. Thus, the Board's review of the issue of entitlement to a TDIU will be limited to the period prior to October 7, 2009. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. Prior to October 7, 2009, the Veteran's service-connected PTSD was not evaluated as 60 percent or more disabling. 2. The Veteran's service-connected PTSD is not sufficient by itself to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for a TDIU for the period prior to October 7, 2009, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an April 2011 remand, the Board noted that the claim for TDIU was raised as part of the claim for an increased rating for the Veteran's service-connected PTSD that was before the Board at that time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Pursuant to the Board's directive, the Veteran was provided complete notice by letter dated in April 2011, prior to the initial adjudication of the TDIU component of the claim. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent VA outpatient treatment records, as well as private treatment records has been completed. In addition the Veteran has been afforded appropriate VA examinations. Further, the Board finds that there has been substantial compliance with the February 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any outstanding evidence that should be obtained to substantiate his claim. The Board is also unaware of any such evidence. In sum, the Board also is satisfied that the originating agency has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Accordingly, the Board will address the merits of the claim. Legal Criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology are considered as one disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). The Board, however, does not have the authority to make such an assignment in the first instance. Rather, the Board may only grant a total rating under section 4.16(b) after the extra-schedular issue has been referred to and denied by the Director, Compensation and Pension Service. For a veteran to prevail on a claim for TDIU on an extra-schedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis As noted above, in April 2011, the Board determined that the issue of entitlement to TDIU based on the Veteran's service-connected PTSD had been reasonably raised by the record, and found such issue part and parcel of the Veteran's claim for an increased rating for his service-connected PTSD. See Rice, 22 Vet. App. 447 (2009). Prior to October 7, 2009, the Veteran's PTSD was evaluated as 30 percent disabling from September 30, 2003, and 50 percent disabling from October 13, 2005. Thus, prior to October 7, 2009, the Veteran's PTSD did not meet the minimum schedular criteria pursuant to 38 C.F.R. § 4.16(a). In a November 2012 decision, the Appeals Management Center determined that referral to the Director, Compensation and Pension Service for extra-schedular consideration was not warranted. Nevertheless, the Board must consider the evidence of record to determine whether such referral is appropriate. In a VA Form 21-8940 received in May 2011, the Veteran reported that his service-connected PTSD, residuals of a stroke, and asthma prevented him from securing or following any substantially gainful occupation. He further reported that he had completed two years of college and had additional training in accounting. He stated that he last worked in a full-time capacity in 1996, and became too disabled to work in 2003. Specifically, he indicated that he last worked for Northwest Mutual in a sales position from 1957 through 1995. The Veteran had a VA PTSD examination in August 2009, performed by a VA psychologist who reviewed the claims files. The Veteran reported having had a long marriage of 54 years and that he currently got along well with his adult children, but otherwise disliked being in groups. He reported feeling angry and depressed frequently, and stated he became easily upset. He reported feeling miserable at times, and that when depressed he would be tired, unmotivated and bored. The Veteran stated he frequently thought about buddies who were killed in the war, and that although he tried to forget about the war it kept resurfacing. He endorsed being "on edge" when exposed to noise and commotion. He reported sleep disturbance with nightmares and night sweats and stated he could get a couple of hours sleep per night. The Veteran did not want to be around others and was driving less and less. He believed his memory and concentration were way off, and his wife was frustrated at his memory problems, although some of these cognitive problems could be at least partially due to a stroke in 2007. The Veteran reported he had retired six years previously and was no longer employable due to functional impairments from his stroke and his depressed mood. The Veteran's wife would tell him what to do and would take care of most other things for him, but he was capable of performing activities of daily living (ADLs). During examination the Veteran was oriented times three and cooperative, although his mood was irritable and he presented with a degree of feistiness. His affect was congruent, his speech was animated and his thoughts relevant and organized. He denied current suicidal ideation (SI) or homicidal ideation (HI) and there was no evidence of cognitive disorganization or psychosis. The examiner diagnosed chronic moderate PTSD and assigned a current GAF score of 55, noting that the Veteran's highest GAF during the past year was 58 and his lifetime low was 50. The examiner stated specifically in regard to employability that the Veteran attributed his unemployability to sleep problems, depression, irritability and problems with memory and concentration; he was also of an age (86) when it would not be expected that he would be employed. The Veteran was competent to handle his own financial matters. A letter from Dr. AT dated in July 2010 assigned a current GAF score of 31. The Veteran had a VA PTSD examination in July 2010, performed by a VA psychologist other than the psychologist who had performed the previous examination in August 2009. The examiner noted the current GAF score of 31 assigned by Dr. AT, noted above. The Veteran reported he had been retired for quite some time. He reported he had been married more than 50 years and had occasional fights with his wife due to his temper. He stated he had a good relationship with his children but he denied having any friends because he became upset too easily and had to stay in his own world. He no longer pursued activities like fishing because of physical health problems and primarily engaged in sedentary activities. He denied SI, HI or assaultive behavior but endorsed difficulty sleeping. In terms of current symptoms, the Veteran reported feeling consistently depressed, with decreased interest in things he previously found pleasurable. He reported decreased appetite and frequently feeling fatigued. He endorsed having intrusive thoughts and nightmares several times per week, as well as occasional flashbacks. He endorsed avoiding loud noises and crowds. He stated he felt very isolated and distant from people, with emotional numbing. He reported difficulty falling and staying sleep, and only being able to achieve three hours of sleep per night. He stated he was fairly irritable and found himself yelling a lot. He reported difficulty concentrating and reported increased concern about danger, with hypervigilance. He endorsed some panic-like symptoms and reported feeling easily jumpy and startled. He stated his PTSD symptoms had made him "more rowdy" and that he had no friends as a result of his PTSD. During examination the Veteran presented as appropriately groomed; he was cooperative and readily engaged in conversation. Some psychomotor slowing was observed. His mood was depressed and his affect was constricted; he was occasionally tearful when describing his experiences. No impairments in perception were noted. His thought processes were coherent, organized and intact. Though content was appropriate. The Veteran denied SI or HI. Concentration appeared intact but there were some deficits in memory, specifically recent recall. His ability to abstract was somewhat impaired as he was fairly concrete. Judgment, impulse control and insight were intact. The examiner diagnosed PTSD and major depressive disorder (MDD) and assigned a current GAF score of 45. The examiner stated it was difficult to discern how much of the impairment in the Veteran's occupational and social functioning was due to psychiatric symptoms versus his medical problems. However, it was clear the Veteran's PTSD symptoms had led to a decrease in quality of life due to his poor temper, anxiety level, and difficulties engaging in social interaction. In an April 2011 letter, Dr. A.T. noted the Veteran's current age of 87 and indicated that the Veteran was incapable of working due to his PTSD symptoms. He further reported that the Veteran could no longer focus or concentrate on his work, to include his attempted pro-bono work at a private company. A.T. noted that the Veteran's memory had deteriorated and that, cognitively, he was unable to clearly remember any situations regarding when and where he worked. A.T. also noted that the Veteran had a stroke or possible CVA in 2007. In addition to the Veteran's memory dysfunction, A.T. noted that the Veteran was clearly unemployable due to his two pacemakers. On review of the evidence above, the Board finds that the preponderance of the evidence shows that the Veteran's psychiatric disability is not sufficient by itself to preclude the him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. There is no doubt that the Veteran is unemployable due to his age and multiple disabilities. In fact, his service-connected asthma is 100 percent disabling. However, both of the VA examiners concluded that the Veteran's PTSD was moderate. The mental status examinations performed in connection with those examinations showed that the Veteran's thought processes and judgment were intact. The record shows that he maintains relationships with family members. At the July 2010 VA examination, he readily engaged in conversation. At the August 2009 VA examination, the Veteran did not contend that his PTSD symptoms prevented him from working and the examiner stated that the Veteran would not be expected to work at his current age. The July 2010 VA examiner stated that it was clear that the Veteran's PTSD symptoms; namely, his poor temper, anxiety, and difficulty engaging in social interaction, led to a decreased quality of life, but he did not conclude that the Veteran's service-connected psychiatric disability resulted in unemployability. There is no indication of SI, obsessional rituals, speech abnormalities, near-continuous panic, or difficulty in adapting to stressful circumstances. The Veteran has reported anger management issues including irritability, but without periods of violence. He reported difficulty sleeping and that he does not socialize with anyone outside the family, but he has not described symptoms or impairment that would preclude him from obtaining or maintaining substantially gainful employment consistent with his education and industrial background. In his July 2009 and July 2010 letters, Dr. A.T. attributed the Veteran's unemployability to PTSD and other disorders. While he stated in the April 2011 letter that the Veteran was unemployable due to his PTSD symptoms, he provided very little information concerning the manifestations of the PTSD. He identified problems with focusing and memory but also noted that the Veteran had had a stroke and that the Veteran was unemployable due to heart and pulmonary disabilities. He did not adequately support the opinion that the Veteran was unemployable due to PTSD. In assessing the evidence of record, it is important to note that the GAF score is based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31-40 is indicated when there is, "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood." A score of 41-50 is assigned where there are, "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51-60 is appropriate where there are, "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. In this case there is a wide disparity between the GAF scores assigned by Dr. AT and the VA examiners. Dr. AT assigned a GAF score of 35-39 in July 2009, while a VA psychologist assigned a much higher GAF score of 55 just one month later. Similarly, Dr. AT assigned a GAF score of 31 in July 2010 while a different VA psychologist assigned a GAF score of 45 the same month. The Board recognizes that Dr. AT is the Veteran's attending psychologist while the VA examiners based their GAF scores on a single interview plus review of the file. However, the Court has expressly declined to adopt a rule that accords greater weight to the opinion of the veteran's treating physician over a VA or other physician. Winsett v. West, 11 Vet. App. 420 (1998); Chisem v. Brown, 4 Vet. App. 169, 176 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, Dr. AT reported GAF scores without any indication of how such scores were assigned without comment on the Veteran's complaints or observed symptoms; the Board notes in that regard that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In contrast, the GAF scores assigned by the VA examiners are more reflective of the symptoms noted during examination and thus representative of the level of impairment recorded in clinical notes. Accordingly, the Board finds the GAF scores reported by the examiners to be more probative than the scores reported by Dr. AT. GAF scores between 41 and 50 indicate serious symptoms or any serious impairment in social, occupational or school functioning, while GAF scores between 51 and 60 indicate moderate symptoms or moderate difficulty functioning. The decline in GAF scores from 55 in August 2009 to 45 in July 2010 arguably shows a decline in functioning during the intervening year; however, the July 2010 examiner did conclude that the Veteran's PTSD was moderate, which is how it was described at the earlier VA examination. Moreover, the actual symptoms and impairment recorded during the VA examinations are not indicative of an inability to obtain or maintain substantially gainful employment. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even giving full competence and credibility to the Veteran's statements, nothing in his statements shows that his PTSD is sufficient by itself to render him unemployable. Accordingly, the Board has concluded that referral of this claim for extra-schedular consideration is not in order. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. ORDER Entitlement to a TDIU due to PTSD for the period prior to October 7, 2009, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs